R v. Secretary of State for the Home Department, Ex parte Grazyna Beecham

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte GRAZYNA BEECHAM

6 October 1995

Queen's Bench Division: Popplewell J

Deportation - overstayer - service of deportation order - applicant interviewed to ensure no change of circumstances since signing of order-none identified - whether immigration officer then entitled to serve order without reference to others.

Judicial review-application to set aside leave granted to move for judicial review - innocent misrepresentation when leave granted - the principles that will guide the court in considering whether to set aside leave.

Application by the Secretary of State to set aside leave previously granted by Tucker J, for the applicant to seek judicial review of the decision by the Secretary of State to deport her as an overstayer. The respondent was a citizen of Poland. She had married a British citizen. The parties however had ceased to live together as man and wife and in consequence the respondent had been refused variation of leave on the basis of marriage.

It was asserted by the Secretary of State that not all the relevant information had been put to Tucker J when he granted leave to move. It was accepted that in consequence there had been innocent misrepresentation. The court set out the principles that should guide it in those circumstances.

It was argued by counsel for the applicant that there had been procedural impropriety in the service of the deportation order. An immigration officer had visited the applicant to serve the order on her: he had interviewed her to determine whether there had been any change in her circumstances since it had been signed. He established there had not, and immediately served the order. Counsel argued that following Oladehinde, the immigration officer who conducted that interview should not have served the order without reference to another immigration officer not involved in the enquiry.

Held

1. Only rarely would the court set aside leave. Where misrepresentation was alleged at the stage when leave had been granted, it had to be shown that the misrepresentation was material and had had an effect on the judge's decision. It was also necessary for the court to determine whether, in the light of all the material subsequently before it there was an arguable case. If there were, leave should not be set aside.

2. On a review of the material now available, there was no arguable case and leave would be set aside.

3. There had been no procedural impropriety in the immigration officer serving the order immediately after the interview which had established there had been no change in the circumstances of the applicant since the signing of the order. That was not part of the decision-making process.

D Seddon for the applicant

Miss D Rose for the respondent

Case refer-red to in the judgment:

Shamusideen Oladehinde v Secretary of State for the Home Department

[1991] Imm AR 111: [1990] 3 ALL ER 393.

POPPLEWELL J: This is an application by the Secretary of State for the Home Department to set aside leave granted on paper by Tucker J on 9 June 1995. He then granted leave to the applicant, Mrs. Beecham, for leave to challenge the decision of the Secretary of State for the Home Department to sign a deportation order, dated 27 January 1995, and served on 2 June 1995.

The decision, which effectively appears in the letter of 2 June 1995, reads as follows:

"I refer to the immigration status of your above named client whose appeal against the Secretary of State's decision in principle of 28 July 1993, to make a deportation order against her, was dismissed by an adjudicator on 9 May 1994 and an application for leave to appeal to the Immigration Appeal Tribunal was refused on 16 June 1994.

The Secretary of State has carefully reviewed this case in the light of all the known circumstances, including an interview with Mr. and Mrs. Beecham held on 30 August 1994 and a visit to the marital address by immigration officers on 23 October 1994, but he is not satisfied that the marriage is genuine and subsisting or that the couple live together on a permanent basis. He is not persuaded therefore that he would be justified in revoking the deportation decision and allowing Mrs. Beecham to remain here with her husband."

The applicant's application for leave did not condescend in the Form 86A to the grounds upon which relief was sought. It simply sets out the relief that was sought and the grounds can only be extracted, with some difficulty, from an affidavit sworn by the applicant, on 8 June 1995, which reads as follows:

"It is my most strongly held belief that a decision arrived at by the Secretary for the Home Department to deport me is irrational and due to my continuing subsisting marriage and that further there may be procedural impropriety in arriving at this said decision. As the wife of a British subject, Robert Beecham, I should be entitled to indefinite leave to remain. "

Procedural points do not have any great attraction in public law cases. It is possible now, having heard full argument, to ascertain what the ground for seeking to apply for judicial review is, which is that although it is accepted that the applicant is an overstayer and has either used up, or has not been entitled to, any further grounds of appeal, nevertheless she had a subsisting marriage and should be entitled to stay and remain in the country. As I have indicated from the decision letter of the Secretary of State, it is his view that there is not either a subsisting marriage or a genuine living together of the husband and wife.

When the learned judge gave leave he had before him the affidavit from the applicant and a number of documents. There were absent from the papers before him a good number of documents which were undoubtedly material. The Secretary of State today seeks to set aside that leave. No reasons having been given by the learned judge as is the custom. There are two bases: firstly, there has been material non-disclosure; secondly, in any event, there is no arguable case upon which leave could properly be given. There is a wealth of learning on the subject of the court's approach to setting aside.

I do not propose to refer to any of the cases but to summarise what I believe to be the law applicable, certainly, to what is alleged to be innocent misrepresentation. There is no suggestion in this case that if there is a misrepresentation it was done other than in the rush to get the papers before the court, and there is no suggestion alleged by the Secretary of State of bad faith against the person who prepared the documents.

It seems to me that the following principles apply: firstly, that it is only in exceptional cases that the court will grant a respondent the right to set aside leave which has been given; secondly, the respondent needs to show not merely that there has been a misrepresentation but that it is material; thirdly, that the representation was misleading or that there was a misrepresentation which was material and that it would have had an effect on the judge's decision. That is to say that if he had the material, which it is said he should have had, he would have to come to a different conclusion. This is dealing with what is described as "an innocent" misrepresentation; false misrepresentation may lead to quite different considerations.

Finally, it seems to me that what the court has to do in this case is to decide whether there is, indeed, after the review of all the material which is before the court, an arguable case. If there is an arguable case, in the light of all the documents, it matters not whether they were not before Tucker J because it will necessarily follow that if they had been before Tucker J he would have granted leave. If the court comes to the conclusion, having looked at all the material now before the court, that it is unarguable, then the court should set aside because with all the material now being available leave should not have been given. So, in my judgment, while I will review the absent documents to some extent, it seems to me that the substantive question in this case is: given all the material which I now have, is there an arguable case which can properly be put forward?

Mr. Seddon, in the course of a formidably well argued case, has submitted that there was not any material non-disclosure. However, absent that argument for the moment, the judge, now armed with all the material, would certainly give leave because there is an arguable case on a number of points. I summarise them in this way: that there was, indeed, a subsisting marriage, that is a genuine marriage between Mr. and Mrs. Beecham, and accordingly the Secretary of State has misdirected himself and/or is irrational in the contrary conclusion.

Secondly, that on 2 June, immediately before the service of the deportation order, an immigration officer, having arrested the applicant, then interviewed the applicant and decided that there was no change in the applicant's position and thereafter served the deportation order on her. That is said to be a procedural impropriety because that immigration officer should, if, as it is said to be plain, he was still investigating, have taken the results of his investigation to a senior person. It is not up to him to make the decision, in effect, that the applicant should be deported.

The other ground on which the applicant relies is that at the end of 1994 and March 1995 it was indicated to the applicant that the deportation would be put on hold and that by signing the deportation order, on 27 February 1995, and seeking to serve the deportation order, on 2 June, the decision to deport was not made in accordance with proper procedures. Finally, it is said that there is a complaint against the immigration officer and that that should have been taken into account by the authorities as it cast doubt on his credibility in relation to a number of factors. So, essentially, it seems to me that the court has to consider whether there was material before the Secretary of State upon which he could properly come to a conclusion that this was not a continuing and genuine marriage.

The applicant's history can be summarised in this way. She arrived in the United Kingdom on 26 November 1988 from Poland. She was in possession of an entry clearance, endorsed "single visit", and was given leave to enter as a visitor for six months with employment prohibited. An application for leave to remain for an unspecified period was refused on I September 1989. She did not appeal against that refusal. On 6 October 19S9 she applied for leave to remain as a foreign spouse, she having been married to Mr. Beecham on 14 September 1989. Leave to remain was granted to her until 6 February 1991 with no restriction on taking employment. She applied for an indefinite leave to remain on the basis of the marriage. That was refused on 11 February 1992, but there was an extension of stay until 11 March 1992. No appeal was lodged against that decision.

A late application for indefinite leave to remain was refused on 10 November 1992 with no right of appeal. In October 1993 a further late application for indefinite leave to remain was made but was refused. The result is that the applicant is in the United Kingdom without leave. The applicant gave notice of appeal on 6 August 1993 and that appeal failed because there was, in law, power to make a deportation order for the reasons stated in the notice of decision. The Secretary of State considered the grounds of appeal and, as I have indicated, in October 1993 found no cause to alter his decision.

It is perhaps sensible now to refer to the applicant's affidavit because it sets out a picture which, I have to say, is not entirely consistent with the correspondence which was not disclosed to the learned judge. She sets out in her affidavit some of the history, though not all of it, and goes on to say this:

"In short the facts of this matter are: I married Robert Beecham in September 1989 and am still legally married to him. There have never been any divorce proceedings or legal separation. Whilst it is not inaccurate to say that we have in the past had periods of time when we have not seen each other, there is produced a bundle of documents marked "GB3" exhibiting a statement of Robert Beecham concerning our marriage together with a copy of Robert's letter of 24 October 1994 to the Immigration Department and letters to myself and my husband at our address of 24 Brougham Road, Acton, London W3 from the Housing Department for the London Borough of Ealing together with a letter from Lloyd Bentley Plc concerning a proposed mortgage for the purchase of the property."

All those documents tended to show that they were living together at a particular address. The statement of Robert Beecham, marked GB3, postdated the deportation order. It read as follows:

"I do wish to confirm that when Grazyna and I married it was of course with the intention for us to remain together permanently, however my frequent travelling did mean that I had long periods away from my wife which were sometimes increased because I do have a child from a different relationship.

Over the past few years Grazyna and I have kept in contact being with each other from time to time at 24 Brougham Road, Acton, London, W3. Also Grazyna is in regular contact with my mother Mrs. Stoyle.

I now understand that my wife faces a deportation order from the UK which I strongly object to and confirm that I wholeheartedly support her application to remain here which she now considers to be her home which will in turn give the opportunity for our relationship and marriage to continue as was always intended."

There were a number of documents which were not before Tucker J. Some were of really no significance in the sense of concealing from Tucker J the position; others, in my judgment, did lead Tucker J to have quite a different view of the decision of the Secretary of State. There was absent from the bundle the refusal to revoke or vary leave to enter or remain in September 1989. That was not material. There was absent the decision in February 1992: and the decision of November 1992. There were the documents setting out the refusal to grant leave to remain.

In March 1993 there was a letter from a body called Maja Lewis Agency Co Limited, who look as though they were people acting on behalf of the applicant, addressed to a Member of Parliament in which this phrase occurs:

"She married in 1987 and lived together happily until June 1992 when, by chance, Mrs. Beecham found out that her husband had recently fathered a child by another woman.

However, they continued to live together but Mrs. Beecham could not tolerate this situation, particularly because she herself very much wanted to have children. So, feeling deceived, she effectively separated from her husband.

The letter goes on in another place:

"Mrs. Beecham is settled in Great Britain and has for most of the last five years been working as housekeeper of the Private London Residence of the king of Saudi Arabia. Suddenly, through no fault of her own, she faces rejection not only by her husband but also by the country she has come to regard as home."

Mr. Wardle wrote to Sir George Young Bt MP on 8 May saying this:

"Paragraph 139 of the Immigration Rules ... inter alia, that both parties have the full intention of living together as man and wife. This was clearly not so in Mrs. Beecham's case, and her application was refused.

It is not Home Office policy to grant settlement in cases where a marriage has broken down unless there are overwhelmingly and exceptionally strong compassionate circumstances. There appear to be no such circumstances in Mrs. Beecham's case. Mrs. Lewis says she believes there has been an injustice in this case, but I cannot find any evidence of this. Mrs. Beecham has been given every opportunity to establish her claim to remain under the Immigration Rules. Furthermore, she concealed from the Immigration Department for some months the fact that her marriage had ended because she had left her husband."

It is not suggested that she had ever said to anybody that the marriage had ended because she left her husband, but it is quite obvious that she had, indeed, parted from her husband. The solicitors wrote back on 16 June to the Home Office:

"We are asked to stress that our client has never indicated that her marriage has broken down as referred to in paragraph 3 of Mr. Wardle's letter to Sir George. In fact, representations made at the interview were an attempt to explain that our client was unable to continue marital relationships with her husband, because he had fathered a child with another woman. She did not ‘conceal' from the Immigration & Nationality Department that the marriage had ended, because in fact it had not. She did however delay contact since she was not in a position to state categorically how things were between herself and her husband. It was never furthermost from her mind that there could be a reconciliation.

There was a time when the parties were frequently apart as a result of Mr. Beecham's work as a driver ...

We now understand that the parties have been considering a reconciliation. They are not in fact living together..."

and they then set out the position. He goes on:

"However, he [Mr. Beecham] fully supports our client's application to remain in the country on the grounds of his marriage to her, and in this connection we enclose his letter of support."

The Secretary of State wrote back in July saying that he had considered Mrs. Beecham's application to be reconsidered and he was not prepared to alter the decision of 10 November 1992. On 28 July 1993 Mr. Boury wrote an official note saying:

"The Secretary of State is satisfied that you are remaining without leave …"

and decided to make an order for deportation. On 9 August 1993 the applicant wrote a letter to the Prime Minister and in it she made it perfectly clear that she had been having very serious problems with her husband and she said she did not want any further humiliation.

" I said I needed some time alone to come to terms with [his behaviour] and decide whether I could forgive and go on living with somebody who had so terribly hurt me. I was suicidal, very depressed and thinking why it all had to happen to me? Why did I cling so much to this man, why did I cling to the belief that he did love me?"

Then she said this:

"After that my husband disappeared for good. I was completely lost . . ."

Then she goes on to say:

"I am being threatened with deportation. I have been given 14 days to leave the country. Mr. Prime Minister, it is an awful tragedy for me, the end of my world, my dreams and hopes. I might have married a cruel conman, or somebody totally immature, but I have created a place for myself here..."

Then she said:

"My only folly is that I love my husband."

On 20 August the solicitors write again asking that it be reconsidered and in September the Secretary of State writes back saying that they have reconsidered the case in the light of the letter to the Prime Minister but they are not prepared to change their minds. There was an appeal in which there was a notice of appeal given. The solicitors wrote, on 20 September, saying:

"For the avoidance of doubt, the grounds of the appeal are that as a married person to a British citizen, Mrs. Beecham is entitled to remain in the UK and that the marriage entered into was not a marriage of convenience. Again, for avoidance of doubt, although the parties are now separated, they are not divorced and divorce proceedings are not contemplated."

On 1 October the Secretary of State replied that they had given further consideration but were not prepared to alter the decision and set out the reasons for it with the Home Office explanatory statement, which runs for some two pages. The solicitors write back in October 1993 setting out the same point again, namely, that their client is still married and there are no divorce proceedings. The Secretary of State wrote back on 20 October 1993, as follows:

"The Immigration Rules allow that a person with limited leave as the spouse of a person settled here may have the time on their stay removed at the end of that period provided that the marriage has not been terminated and that each of the partners has the intention of living permanently with the other as his or her spouse.

As Mr. and Mrs. Beecham are no Ionger living together Mrs. Beecham does not fall to be granted settlement under the Immigration Rules."

Nothing could be clearer as to the decision of the Secretary of State's reasoning. The solicitors write back saying:

" her marriage had not been terminated, it still has not and at the time she made the application the parties did intend to live permanently with each other. The fact that Mr. and Mrs. Beecham do not live together now is immaterial."

There has been, as I have indicated, the appeal in May 1994 to the adjudicator and that is one of the documents that was not before Tucker J. The deportation order was signed in February 1995. On 27 March 1995 some other solicitors wrote saying:

"Please note our interest and we look forward to receiving your decision with regards to Mrs. Beecham's status in this country...

We understand that in August 1994 the Immigration Department held an interview with our client and her husband, Mr. R Beecham. Our client informs us that at the interview it was made quite clear to the Department's representative that Mr. and Mrs. Beecham live as man and wife and Mrs. Beecham has resided in this country for a considerable amount of time."

That evoked no reply from the Secretary of State until the serving of the deportation order and the letter of 2 June 1995.

I therefore ask myself, leaving aside for the moment the points that Mr. Seddon has raised about the service of the deportation order, can the decision of the Secretary of State be impugned on the grounds of irrationality, absence of reasons, failure to take into account material matters, that is, all the points that can be raised under the general umbrella of Wednesbury? I am quite satisfied that there is no arguable point. The Secretary of State had to decide whether the couple were living together on a permanent basis. There was material before the Secretary of State which entitled him to come to the conclusion that, whatever may have been the position originally when he came to his decisions, it was quite clear to him as a result of a great deal of representation that they were not living together on a permanent basis. I find it impossible to say that the Secretary of State's decision can be impugned on any of the normal grounds under the general umbrella of Wednesbury.

I turn, therefore, to the point which was made by Mr. Seddon as to what happened on 2 June 1995. Mrs. Beecham says that she had heard nothing after 27 March and it was a complete surprise, when, on the morning of 2 June, she was arrested by two immigration officers and a policeman. She was taken to the local police station, placed in a cell, interviewed by immigration officers and served with a deportation order. Mr. McCarthy, who was one of the immigration officers concerned, deposed as follows:

"On 27 February 1995 a deportation order was signed against the Applicant. On 2 June 1995, in order to effect service and enforcement of that order, I attended the Applicant's address at 24 Brougham Road, London W3 together with another immigration officer and police officers. The Applicant was arrested and taken to Acton Police Station. Her solicitor was informed of her arrest by telephone and fax, and he immediately indicated that it was his intention to apply for leave to move for judicial review. I interviewed the Applicant in English in the presence of her representative, I asked her to set out her personal circumstances. They did not appear to have changed since the signing of the Deportation Order"

Then he served the order upon her.

The argument in respect of this aspect of the case goes as follows: this decision-making procedure in deportation matters is set out in the well-known case of 0ladehinde [1990] 3 All ER 393, the effect of which is that a decision in relation to deportation shall be taken by somebody in a senior position. Additionally, it should not be taken by somebody who has been part of the investigative procedure. Mr. McCarthy was not, it is said, in a senior position. He was one of the investigating officers and accordingly, having made what he described as inquiries from Mrs. Beecham on 2 June before the deportation order was actually served upon her, it was incumbent upon him to prepare a report for a more senior officer to consider whether the deportation order should be served.

I regret that I do not find substance in that argument. I think it is elevated into a decision-making process, which it clearly was not. What Mr. McCarthy was doing there, essentially, was to serve the deportation order. If there had been any change of circumstances which Mrs. Beecham spoke about it might well have been incumbent upon Mr. McCarthy to report that to the other senior officer, but there was not any change in the circumstances according to Mr. McCarthy. It therefore follows that the argument, well presented on this point, fails. The position of husband and wife has been, in my judgment, clearly set out in the correspondence. It undoubtedly fluctuated but the Secretary of State, in my judgment, was perfectly entitled to take the view, whatever Mr. Beecham may now say post serving of the deportation order, that this was not, at the time the decision was made, a continuing married relationship.

The next point which is made is that a Mr. Grant has sworn a lengthy affidavit in which he alleges that on 23 December he was told that the case was on hold for six months as a number of decisions needed to be taken. He said he was told that by somebody in the Secretary of State's office. There is some dispute as to whether there ever was such a conversation but, assuming that there was, in my judgment it adds nothing to this case. It is quite obvious that very considerable consideration was given, on a great number of occasions, to the relation between Mr. and Mrs. Beecham and that by 27 February 1995 there was ample information before the Secretary of State upon which he could come to a conclusion. The second matter which is relied on is contained in the affidavit of Mrs. Beecham which is that, in effect, there was a representation to her solicitors, in March 1995, that no decision had yet been made. It is true that the solicitors wrote the letter of 27 March but there is nothing in the papers to show that any representation was ever made to the solicitors before the deportation order was made and that no final decision had been made.

I therefore reject the argument based on the alleged representation. The argument on that aspect is that no proper consideration was given to the material put before the Secretary of State. It is said that when one looks at the letter of 2 June there is no reference to the material submitted by Mr. and Mrs. Beecham in her letter (the letters are contained in GB4). They were sent under cover of a letter at page 25. The letter was sent in September. I do not find the absence of those letters to be in any way important. There is no doubt that there was a time when they were undoubtedly living together a 24 Brougham Road but that does not, in my judgment, affect the overall picture. I therefore come to the clearest possible conclusion that there is no arguable case for the applicant.

I am satisfied that if Tucker J had had the documents which I now have he would undoubtedly have come to the same conclusion. I absolve from any suggestion that the misrepresentation which occurred was other than done because of the necessity for speed, but I believe that there was material misrepresentation and that if Tucker J had had material that I have he could only have come to the same conclusion. Accordingly I shall set this leave aside.

leave set aside

Solicitors: Michael Amy & Partners, London W1; Treasury Solicitor

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